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Old Habits Die Hard: Tips to Avoid Becoming a Defendant

February 1, 2016

The adage “old habits die hard” seems particularly applicable to a rash of lawsuits recently filed and settled by the Equal Employment Opportunity Commission (EEOC). A Wisconsin employer agreed to pay $140,000 to settle an age discrimination and retaliation lawsuit filed by the United States Equal Employment Opportunity Commission (EEOC) on behalf of two employees. The agency alleged that the company essentially fired the employees for having a birthday — or more accurately, for having too many birthdays.

There is no shortage of similar cases. These cases are a good reminder that strong anti-discrimination and harassment policies, ongoing training, and stringent oversight is best practice are absolutely essential for an employer to avoid being the next defendant.

Age Discrimination

Stack Bros. Mechanical Contractors is a heating and plumbing contractor operating in northern Wisconsin and Minnesota. Randy Virta, a service manager, and Karen Kolodzeske, a book-keeper, worked for the company for 16 and 25 years, respectively. Virta was employed as a service manager. The EEOC alleged his employment was terminated on February 14, 2014 because he had reached 62 years of age. Vita’s employment was terminated on February 14, 2014, allegedly because he turned 62. In May 2014, Kolodzeske objected to the company’s plans to fire her at age 62, saying it was illegal to terminate her employment because of her age. Stack Bros. retaliated against her by docking her pay and informing her that her position would be changed to part-time and she would have to reinterview to keep her position. In September 2014, Kolodzeske turned 62, and her employment was terminated.

The EEOC filed a lawsuit against Stack Bros., claiming that the company discriminated against Virta and Kolodzeske by firing them simply because they turned 62. The consent decree settling the lawsuit prohibits Stack Bros. from engaging in discrimination in the future and requires it to pay $95,000 to Virta and $35,000 to Kolodzeske. In addition, the company must pay $10,000 of the employees’ attorneys’ fees and train its managers and employees on its obligations and employees’ rights under the Age Discrimination in Employment Act (ADEA).

Sexual Harassment and Retaliation

Smokin’ Spuds, Inc., and Farming Technology, Inc., are integrated potato-packing companies operating in Colorado. According to the EEOC, supervisor supervisor Samuel Valdez engaged in sexually inappropriate behavior, including making sexual comments and gestures, propositioning female employees, touching female employees’ buttocks and breasts, and pulling a female employee onto his lap on at least one occasion. Complaints to management went unheeded, and in some circumstances, female employees were fired after complaining. As a result, the harassment continued for years.

The EEOC claimed the employees were subjected to regular verbal sexual harassment and unwelcome physical contact. The agency also claimed that the companies unlawfully discharged three female employees in retaliation for refusing to submit to the harassment or making complaints about the harassment to management.

In addition to paying $450,000 in monetary damages, Smokin’ Spuds, Inc. and Farming Technology, Inc., are subject to a three-year consent decree that stops them from engaging in any employment practices which discriminate on the basis of sex (including sexual harassment) and retaliating against employees who oppose such practices. The companies must report their compliance with the decree to the EEOC. The consent decree requires the companies to:

Post a notice regarding employees’ right to be free from harassment and retaliation;

Distribute equal employment opportunity (EEO) policies; and

Establish a consent decree monitor with various oversight responsibilities.

In another case, the EEOC filed suit against Moreno Farms, a produce and packing operation in Florida. The agency claimed that two of the owner’s sons and another male supervisor engaged in graphic acts of sexual harassment against five female employees. The employees were regularly groped, propositioned, and threatened with termination if they refused their supervisors’ sexual advances. The EEOC also alleged that the supervisors raped and attempted to rape female employees. All five women were ultimately fired for opposing the sexual harassment and assaults. On September 10, 2015, a jury awarded the women $17,425,000.

Sierra Academy of Aeronautics, an international flight institution in California agreed to pay $60,000 to settle a pregnancy discrimination lawsuit. A female aircraft mechanic told the EEOC that she was discharged by the academy’s president after she notified him she was pregnant and had a medical condition. In addition to providing monetary relief and reinstating the employee, the academy also entered into a seven-year conciliation agreement. The academy agreed to hire a full-time HR manager to oversee all EEO processes, review and revise its anti-discrimination policies and procedures, and provide training on the laws enforced by the EEOC to all employees. The agreement requires the academy to maintain a record-keeping system to track and monitor complaints. The EEOC will monitor the employer’s compliance with the agreement.

Disability Discrimination

In September, the EEOC filed suit against a Subway franchise for unlawfully discharging an employee because he has HIV. According to the agency, the franchise terminated an employee (identified as John Doe) after he told his manager that he is HIV-positive. The EEOC alleges the employer violated the Americans with Disabilities Act (ADA), which prohibits employers from discriminating against employees because of a disability.

Bottom Line

Owners, managers, and supervisors are all responsible for ensuring that employees are being treated fairly and are not subjected to discrimination or harassment. There must be open lines of communication between employees and management.

Proper documentation is imperative so hiring, promotion, and termination decisions can be reviewed for red flags. Supervisors’ and managers’ decisions should be regularly reviewed. Additionally, employers must have procedures in place to ensure employees can safely report discrimination, harassment, and retaliation. Regularly update your policies, and enforce them. If you don’t already have an HR manager to oversee all EEO processes, consider retaining one.

This article, slightly modified to note recent updates, was featured in the November 2015 issue of the Wisconsin Employment Law Letter, which is edited by Axley Brynelson Attorney Saul Glazer and published by BLR®—Business & Legal Resources. Reproduced here with the permission of BLR®—Business & Legal Resources.

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